Does my attorney have to provide an interpreter?

Attorneys have responsibilities to provide deaf clients with sign language interpreters and other accommodations that they may need to communicate.

A lawyer who fails to communicate effectively with a client is not meeting his or her duty of competent and zealous representation under the Canons of Ethics. Furthermore, attorneys have a statutory duty to provide effective communication to deaf clients under the Americans with Disabilities Act (ADA), which went into effect on January 26, 1991. Title III of the ADA, 42 U.S.C. §12181 - 12183, provides people with disabilities the right to equal access to public accommodations. Both Title III of the ADA, and the U.S. Department of Justice regulation pursuant to Title III, 28 C.F.R. Part 36, specifically include the offices of lawyers in the definition of public accommodations. 42 U.S.C. §12181; 28 C.F.R. §36.104.

Under Title III, public accommodations are required to provide auxiliary aids and services to ensure effective communication with deaf and hard-of-hearing people:

A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.

28 C.F.R. §36.303(c). Lipreading and writing notes back and forth are seldom effective methods of communication with sign language users. An attorney who relies on these methods cannot be assured of communicating effectively or accurately with his or her client.

A comprehensive list of auxiliary aids and services required by the ADA is set forth in this regulation, and includes, for deaf and hard-of-hearing individuals:

The term qualified interpreter is defined in the regulation to mean " . . . an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary." 28 C.F.R. 36.104.

The Department of Justice states in its Analysis:

It is not difficult to imagine a wide range of communications involving areas such as health, legal matters, and finances that would be sufficiently lengthy or complex to require an interpreter for effective communication.

56 Fed.Reg. at 35567. The Department of Justice has also noted in its Analysis:

The Department wishes to emphasize that public accommodations must take steps necessary to ensure that an individual with a disability will not be excluded, denied services, segregated or otherwise treated differently from other individuals because of the use of inappropriate or ineffective auxiliary aids. In those situations requiring an interpreter, the public accommodations must secure the services of a qualified interpreter, unless an undue burden would result.

56 Fed. Reg. at 35567

The responsibility to provide effective communications with clients applies to attorneys regardless of the fee arrangements with the client, and regardless of whether a case is being handled for a flat rate, hourly rate, contingency, pro bono, as part of a legal insurance package or other arrangement. A public accommodation may avoid provision of an auxiliary aid or service only if it can demonstrate that providing the aid or service would fundamentally alter the nature of the service, or would constitute an undue burden or expense. If the public accommodation is able to demonstrate that there is a fundamental alteration or an undue burden in the provision of a particular auxiliary aid it must nevertheless be prepared to provide an alternative auxiliary aid, where one exists. 28 C.F.R. §36.303(f).

Whether or not providing a particular auxiliary aid would constitute an "undue burden" is difficult to ascertain. Undue burden is defined as significant difficulty or expense when considered in light of a variety of factors including the nature and cost of the auxiliary aid or service and the overall financial and other resources of the business. 28 C.F.R. §36.104. The undue burden standard is applied on a case-by-case basis. Undue burden is not measured by the amount of income the lawyer or other private business is receiving from a deaf client, patient or customer. Instead, undue burden is measured by the financial impact on the entity as a whole. Therefore, it is possible for a lawyer to be responsible for providing auxiliary aids even for pro bono clients, if the cost of the aid would not be an undue burden on the operation of the firm. Furthermore, it may be necessary for a lawyer to provide an interpreter when communicating with non-clients (e.g., estate beneficiaries, witnesses, an audience for a legal seminar).

The Department of Justice does not permit an attorney or other place of public accommodation to charge a person with a disability for the cost of the auxiliary aid provided. Therefore, billing the deaf client for interpreter services as a "client cost" is not permissible:

A public accommodation may not impose a surcharge on a particular individual with a disability . . . to cover the costs of measures, such as the provision of auxiliary aids . . that are required to provide that individual . . . with the nondiscriminatory treatment required by the Act or this part.

28 C.F.R. 36.301(c).

Congress has amended the Internal Revenue Code to provide tax incentives for businesses that incur expenses in increasing accessibility for people with disabilities. The "Tax Deduction to Remove Architectural and Transportation Barriers to People with Disabilities and Elderly Individuals" (Title 26, I.R.C. Section 190) allows a deduction for barrier removal expenses not to exceed $1500 for any taxable year. The "Disabled Access Tax Credit" (Title 26, I.R.C. Section 44) is available to small businesses. It provides a tax credit of 50 percent of eligible access expenditures that exceed $250 but do not exceed $10,250 made for the purpose of complying with the ADA. For more information on these tax provisions, contact the IRS, Office of the Chief Counsel, PO Box 7604, Ben Franklin Station, Washington DC 20044, (202) 622-3110.

It is clear from the Act, the Regulation and its Analysis, that important communications such as those with an attorney will require provision of a qualified sign language interpreter to ensure effective communication with the deaf individual. This cost cannot be passed on to the client.

Are doctors required to provide interpreters for medical visits and other medical-related situations?

The short answer is yes. This is covered under Title III of the Americans with Disabilities Act (ADA). If you feel that you need an interpreter in order to understand what your doctor/health care provider is telling you, then the doctor/health care provider is required to provide you with one. It is best to contact your doctor/health care provider directly and tell them, prior to your appointment, that you need an interpreter. Do not hire your own interpreter and expect the doctor/health care provider to pay your interpreter for you. You may run into problems that way.

The doctor/health care provider must pay for the cost of an interpreter, even if the cost of the interpreter is more than the cost of your visit. The doctor/health care provider is expected to handle the cost of the interpreter as a normal business expense or as part of the overhead costs of operating a business.

If your doctor/health care provider tries to encourage you to bring in a signing family member or a friend as a way to "save costs", say no. Family members and friends cannot be expected to be neutral and sign everything they hear. They may be emotionally or personally involved with you and this may affect their interpreting. Using them as interpreters can also cause problems in maintaining your confidentiality as a patient.

For more detailed information, check other legal information on this site. To refer others to this page, please use: http://www.nad.org/doctors.

Who is responsible for the cost of an interpreter?

Businesses, agencies and other public facilities are required to provide accessibility for specified disabilities and for Deaf clients. This means they are being provided access to communication. Thus, the cost falls upon those who are providing the accommodations. The use of qualified sign language interpreters is a convenient, cost-effective way to provide such access.

A surcharge cannot legally be imposed on an individual with a disability directly or indirectly to offset the cost of the interpreter. The cost of the interpreter should be treated as part of overhead expenses for accounting and tax purposes.

28 C.F.R. 36.303 (b) (1).

The doctor may not charge the patient for the cost of interpreter service, either directly or by billing the patient's insurance carrier:

A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids, barrier removal...and reasonable modifications... that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.

Must a health care provider pay for an auxiliary aid or service for a medical appointment if the cost of that aid or service exceeds the provider's charge for the appointment?

In some situations, the cost of providing an auxiliary aid or service (e.g., an interpreter) may exceed the charge to the patient for that very same service. A health care provider is expected to treat the costs of providing auxiliary aids and services as part of the annual overhead costs of operating a business. Accordingly, so long as the provision of the auxiliary aid or service does not impose an undue burden on the provider's business and does not fundamentally alter the provider's services, the provider may be obligated to pay for the auxiliary aid or service in this situation.

Can a health care provider charge a deaf or hard-of-hearing patient for part or all of the costs of providing an auxiliary aid or service?

No. A health care provider cannot charge a patient for the costs of providing auxiliary aids and services, either directly or through the patient's insurance carrier. 28 C.F.R. Š 36.301 (c).

According to the Americans with Disabilities Act (ADA), a business or organization cannot charge a person with a disability for the cost of the accommodation, i.e., a sign language interpreter. For more information, refer to the ADA website.

The doctor may not charge the patient for the cost of interpreter service, either directly or by billing the patient's insurance carrier:

A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids, barrier removal...and reasonable modifications... that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.

Can a health care provider require family members and friends to interpret for deaf patients?

Generally, no. Family members often do not possess sufficient sign language skills to effectively interpret in a medical setting. Even if they are skilled enough in sign language to communicate, family members and friends are very often too emotionally or personally involved to interpret "effectively, accurately, and impartially." Finally, using family members and friends as interpreters can cause problems in maintaining patient confidentiality. 56 Fed. Reg. at 35553.

Professional interpreters are highly skilled and nationally/state certified in sign language. They are trained in the interpreting process with focus on non-manual and specialized vocabulary. They are required to maintain their certification with continuous training and mandatory CEU's. Certified interpreters are bound by a "Code of Ethics" for confidentiality, impartiality, and professionalism to ensure a true and accurate interpretation.

Problems with using a friend or family member could be one or more of the following: objectivity, skill level, confidentiality, liability.

Benefits of using a professional interpreter are adhering to the professional code of conduct which includes confidentiality, skill level, training and specialized vocabulary, impartiality, liability insurance, experience, ADA compliance and professionalism.

Why shouldn't we use a member of staff who has had some sign classes?

The interpreting process is very different from casual signing. ASL has many idioms and idiosyncrasies, as all languages do. Along with manual signs, ASL relies heavily upon non-manual communication. Within the term of "Sign Language", there are four major signing modes that range from true ASL (American Sign Language) to PSE (Contact Signing), to SEE II (Signing Exact English) and CUED Speech. The deaf community is extremely diverse. The interpreter must be skilled in each of these areas to be able to match the signing style of the deaf consumer for effective communication to take place.

Several years of interactive training are required to achieve a level of proficiency to accurately interpret most situations. There are also different levels of state certification for interpreters which determine the types of assignments/situations they are professionally and legally capable of interpreting.

Can anyone who knows Sign Language interpret?

No. The ability to converse in sign does not qualify a person to interpret.

Interpreting is a complex process requiring native-like fluency in at least two languages. The interpreter must understand the meaning of the message being communicated in one language and determine how to convey that meaning in the other language. The interpreter must present that message in a way that captures the intent and emotion of the person giving the message.

Qualified interpreters typically study American Sign Language (ASL) two to five years and complete two or more years of interpreter training prior to passing certification tests. Certified professionals must fulfill annual continuing education requirements to enhance skills.

In what medical situations should a health care provider obtain the services of an interpreter?

An interpreter should be present in all situations in which the information exchanged is sufficiently lengthy or complex to require an interpreter for effective communication. Examples may include discussing a patient's medical history, obtaining informed consent and permission for treatment, explaining diagnoses, treatment, and prognoses of an illness, conducting psychotherapy, communicating prior to and after major medical procedures, providing complex instructions regarding medication, explaining medical costs and insurance, and explaining patient care upon discharge from a medical facility.

Do written notes offer an effective means of communicating with deaf and hard-of-hearing individuals?

This will depend on the reading level of the individual. The reading level of many deaf individuals is much lower than that of hearing people. Additionally, many deaf people consider American Sign Language (ASL) to be their first language. Because the grammar and syntax of ASL differ considerably from English, writing back and forth may not provide effective communication between the deaf patient and the health care provider. Moreover, written communications are slow and cumbersome in a health care setting, and information that would otherwise be spoken may not be written. If a health care professional is providing less information in writing than he or she would provide when speaking to a hearing patient, this is an indication that writing is not effective communication in that context. For many deaf individuals, the services of a sign language interpreter offer the only effective method of communication. However, some deaf or hard-of-hearing individuals who do not use sign language, such as individuals who have lost their hearing later in life, may communicate more effectively in writing with their health care providers.

Depending on the situation, this could be detrimental. Liability issues should be of great concern. Utilizing the skills of a professional interpreter is the best choice for accurate and effective communication with a deaf individual.

How do I know what is discussed will be kept confidential?

InterWest Interpreters uphold high standards of confidentiality, professionalism, and ethical conduct by adhering to the Code of Professional Conduct outlined by the National Registry of Interpreters for the Deaf. InterWest administrative and scheduling staff also strictly adhere to confidentiality in all processes.

The following are the seven tenets we adhere to:

Interpreters adhere to standards of confidential communication

Interpreters possess the professional skills and knowledge required for the specific interpreting situation

Interpreters conduct themselves in a manner appropriate to the specific interpreting situation

Interpreters demonstrate respect for consumers

Interpreters demonstrate respect for colleagues, interns, and students of the profession